STAY OF REMOVAL. CRUCIAL LEGAL TOOL TO PREVENT DEPORTATION

Have you ever wondered what permits you to remain in the United States while your immigration case is under review by the USCIS, the Immigration Court, or on appeal with the BIA? It is an Administrative Stay of Removal that is granted automatically during administrative proceedings.

For those who may not be aware, the typical legal avenues available for pursuing an immigration case in the United States generally consist of two levels: (1) the administrative level including USCIS, Immigration Court, and the Board of Immigration Appeals (BIA); and (2) the judicial level – the U.S. Federal courts.

The chain of the appeals typically looks like this: negative USCIS decision you may review by the Immigration Court, negative decision of the Immigration Court you may appeal to the Board of Immigration Appeals, negative decision of the BIA you may appeal to the Federal Court of Appeals for the specific Circuit. (the last appeal is legally called the petition for review – so, do not be confused further hereby in the post)   

At the administrative level you are automatically allowed to stay (remain) in the United States until the decision of the administrative entities over your case. The United States Government guarantees it to you through multiple publicly available notices, for example Instructions for Application for Asylum - Form I-589, publicly available here on the link – where on page 11 the DHS clearly and publicly notifies you that “While your case is pending, you will be permitted to remain in the United States.” This also applicable to those forms I-589 filed to Immigration Courts.

The same assurance from the U.S. government relevant to the Immigration Court and BIA proceedings is available for public in the Immigration Court Practice Manual and for the highest level of the administrative entity BIA Practice Manual:

An administrative decision or, in other words - a decision made by the U.S. Government, becomes final once the Board of Immigration Appeals (BIA) rules on your appeal. See 8 C.F.R. § 1241.1. At that point, any administrative stay of removal that may have protected you from deportation automatically expires. This denotes that, as a matter of law, U.S. Immigration and Customs Enforcement (ICE) may deport you immediately after the BIA issues a denial of your appeal.

IMPORTANTLY (!!!) – There is a subtle but critical nuance many individuals overlook until it’s too late. While it is commonly known that you typically have 30 days to file an appeal, the timing and effect of that period vary depending on which decision you are appealing. Read carefully below to understand the destinction.

When the Immigration Court issues a removal order, it does not become final immediately. Typically, you have 30 days to file an appeal with the Board of Immigration Appeals (BIA). If no appeal is filed within that 30-day period, the removal order becomes final upon the expiration of the deadline.

However, once the BIA issues negative decision over your case, the order of removal becomes final immediately upon the BIA’s decision, not after a 30-day grace period. Yes, you still have 30 days from the date of the BIA’s decision to file a Petition for Review with the appropriate U.S. Circuit Court of Appeals however, you are not protected by stay of removal and thus, you may easily be removed from the U.S.

Losing the automatic administrative protection against removal at that point becomes especially critical if you are in immigration detention and your deportation has already been scheduled. In such cases, ICE may promptly approach you and, sometimes even using coercive tactics, to pressure you into signing documents consenting to your removal from the U.S., despite the fact that you still retain the right to seek federal judicial review.

As explained earlier, such conduct of the ICE's officers is not unlawful per se, as the removal order is final and enforceable. However, of caurse, serious questions arise regarding the integrity and ethical propriety of such practices, particularly when they are directed at individuals with no criminal record or history of violence – people who are simply navigating the complex immigration process in good faith.

However, it must be noted, that even during the time of harsh political agenda for immigrants, if you firmly but respectfully explain to the ICE officers that you are intending to file a Petition for Review with the Federal Court, after several verbal attempts to persuade you to sign the consent for your deportation, ICE officers give you 7-10 days to to proceed with the Petition for Review to Federal court.

Thus, it is relatively rare for ICE to engage in overtly coercive conduct, but when it occurs, it underscores the vulnerability of detained immigrants and the critical importance of knowing one’s rights at every stage of the process.

Therefore, it is important to understand the distinction between appealing an Immigration Court decision and challenging a BIA denial in Federal courts. The grace period for filing an appeal is the same - 30 days but the protection from the removal is crucially different.

To protect yourself when you file a Petition for Review with the Federal Circuit, you must take affirmative steps, such as filing a Motion for Stay of Removal with the Circuit Court alongside or immediately after filing your Petition for Review. Without a granted stay, your removal can proceed even while your federal appeal is pending.

Once a Motion for Stay of Removal is filed, most Circuit Courts typically issue a temporary stay automatically while the motion is under adjudication. In the vast majority of cases, the government will file an opposition to the motion. While a reply to the government's opposition is optional, submitting one can reinforce the seriousness and merit of your request.

Once the Federal Circuit grants your Motion for Stay of Removal, you are protected from removal for the duration of the proceedings on your petition for review of the BIA’s decision, until the court issues Mandate of their decision - its final ruling.

A judicial stay of removal is essentially a temporary pause on the execution of a removal order. It prevents the government from deporting an individual but – importantly (!!!) – while their case is under judicial review. It means that stay of Removal cannot exists unilaterally – it is subsidiary tool The purpose is to ensure the individual remains in the country until the court has had a chance to fully review the merits of their claims – in other words – to maintain the status quo.

The factors for granting a stay of removal are established in the landmark case Nken v. Holder | 556 U.S. 418 (2009). An alien must prove the following factors: (1) the likelihood of success on the merits, (2) the possibility of irreparable harm, (3) the balance of hardships, and (4) the public interest.

The standards for granting a stay of removal is notably low and flexible. In Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011), the Ninth Circuit expressly endorsed the “sliding scale” approach, under which a weaker showing on one factor may be offset by a stronger showing on another, particularly the potential for irreparable harm. This flexible framework enables courts to adapt their analysis to the specific circumstances of each case, ensuring that the equities and risk of harm are appropriately balanced.

Typically, the decision over the Motion for Stay of Removal comes after the Opening Brief is filed. the substanciality of the Brief itself impact seriously on the Federal Circuit decision over the Motion for Stay of Removal. It does not mean that the Stay of Removal is granted only over the unequivocally winning cases - not at all. Rather, the brief must show your dillegence and adequacy in pursuing your immigration case that gives chances for winning - not guarantees it.

Thus, to establish the likelihood of success - the adequate and dillegently prepared Opening Brief is the key for the Motion for Stay of Removal be granted. In the Motion itself you need to point out concisely the pivotal issue you will establish in opening Brief.

To establish the irreparable harm - you need show that the deportation harms you and this harm will be irreparable. If your immigration case includes country conditions or human rights reports (actually it must contain such an evidence), you may cite them to show what typically happens to individuals in similar circumstances upon deportation. These references can support your claim that the harm you face is both serious and irreparable. But you must not need to describe all atrocities of humanity in the Motion for Stay of Removal - just concise reference.

The balance of hardships is inherently demonstrated when the first two factors—likelihood of success on the merits and irreparable harm—are properly established. Factually, you only need to emphasize that the harm you would suffer if removed outweighs the government's inconvenience from temporarily suspending your removal.

The same applies to the public interest: if the first two factors are diligently established, the alien need only assert that maintaining the integrity of the immigration system and ensuring consistent enforcement of the law constitutes a valid public interest. Additionally, humanitarian considerations—such as the impact on families or individuals with strong community ties—may also be claimed as part of the public interest.

Hope it helps.

More to come...